Teen Sexting is Illegal
Reports are being received that kids as young as the sixth grade are going into the bathrooms at school and taking photos of other kids on the toilet and texting them to their friends. Certainly by the 7th grade female students are being requested to send pictures of their bare breasts or other body parts to boys. The girls feel pressured that if they do not send a picture they will not be liked.
In a 2009 report by the Pew Internet & American Life Project, 15% of cell-owning teens ages 12-17 said they have received sexually suggestive nude or nearly nude images of someone they know via text messaging on their cell phone. In the same article they report findings from focus groups asking teens their attitudes towards sexting. The attitudes varied between some who think it is “slutty” to potentially damaging or illegal. Others, especially boys, think it’s not a big deal. “We are not having sex; we are sexting.” “Most people are too shy to have sex. Sexting is not as bad.”
Sexting can have disastrous consequences. There have been cases reported in the media of kids killing themselves after someone posted or shared embarrassing sexual photos or videos about them. Jessica Logan, a high school girl in Ohio, sent nude pictures of herself to a boyfriend. When they broke up, he sent them to other high school girls. The girls harassed her, called her a slut and a whore. She was miserable and depressed, afraid to even go to school. She went on television to tell her story. Two months later she committed suicide. A minor locally was charged with posting on the internet a video of him and his then-girlfriend having sex. They had broken up, but he had kept the tape and later, with the urging of a friend, decided to upload the video to the internet. The video was taken down the next day but was viewed by some of the girl’s friends. He was prosecuted and convicted in court of felony conduct. He and his parents were also civilly sued by the girl.
A 21-year-old young man in Georgia was sentenced to ten years in jail for aggravated child molestation when he videotaped his having consensual oral sex with a 15-year-old girl. He was 17 at the time. The Georgia Supreme Court ordered his release from prison after two years. The Georgia Legislature had, subsequent to the offense, made oral sex within three years of age of each other a misdemeanor.
California still treats oral sex between minors under the age of 18 as a felony, and possibly a misdemeanor depending on the circumstances, even if the minors are within three years of age of each other.
An 18-year old-young man was sexted naked pictures of herself by his girlfriend. When they broke up, he mass emailed the photos to get back at her. He was convicted as an adult of transmission of child pornography. He will have to register as a sex offender. He was kicked out of school. He cannot move in with his father because his father lives near a school.
Three teenage girls in a Pennsylvania high school took nude or semi-nude photos of themselves and shared them with male classmates via their cell phones. The girls, all 14 or 15 year-olds, faced charges of manufacturing, disseminating or possessing child pornography, while the boys who were 16 or 17 faced charges of possession.
Does sexting constitute child pornography?
The federal definition of child pornography constitutes visual depictions of actual children (minors under the age of 18) engaged in “sexually explicit conduct.” Clearly acts of intercourse, oral copulation, and masturbation would be included in that category.
- What about the girl who takes and sends nude pictures of herself or her breasts?
- What about the sixth grader who takes pictures of other minors going to the bathroom and then texts them to friends?
- What happens to a minor who forwards or disseminates a nude picture of another without her knowledge?
- What about minors who post such pictures on Facebook or other internet sites?
In New Jersey a 14-year-old girl was arrested on child pornography charges. It was reported that she posted 30 or so nude pictures of herself on her MySpace page. She was charged with possessing and distributing child pornography. Teenagers who take the nude pictures of themselves or have others do it for them are engaging in the production and distribution of nude or semi-nude pictures. It is a felony under both federal and state laws to possess or distribute images showing, among other things, “lascivious exhibition of the genitals or pubic area” of persons under the age of 18.
I don’t see a criminal prosecution in Juvenile Court of the sixth grader going into a bathroom and taking a picture of another student on the toilet. I do see an irate parent finding out about the picture and demanding the offending student be suspended or expelled from school, be kept away from their child, and wanting to know if they can they sue the child and his parents for civil damages. Parents are liable for the intentional torts of their minors up to $37,000.00 for each tort. The seventh grader who sends a picture of her bare breasts or other private parts to another student is unlikely to be prosecuted in Juvenile Court. Could she be subject to suspension or expulsion from school? She would certainly be in violation of the school’s student disciplinary guidelines. If she is a cheerleader or student council member there is an excellent chance she would lose those positions. It is more than likely those pictures will eventually be passed around among other students and the girl taunted by fellow students. What about boys or girls who take videos of their sex acts with other minors and possess the videos, distribute them to others, or post them on the internet? That is child pornography and it is very likely, almost a certainty, that if discovered they will be prosecuted. There are also serious civil concerns about law suits against the offending minors and their parents.
For more of in-depth discussion of Teen Sexting review the excellent journal articles of Mary Graw Leary, Virginia Journal of Social Policy and the Law, Vol. 17:3, page 486, Spring edition 2010 and a working paper by John A. Humbach, Pace University School of Law, “Sexting” and the First Amendment, 9-12-2009. We are not sure who the cartoonist is but the cartoons appear in a piece by Kevin Moore titled “In Contempt.”